BBC News – September 19, 2006
Michelle Roberts, Health reporter
Two lawyers who have defended men accused of recklessly transmitting HIV share their views and experience regarding HIV prosecutions.
Kharrim Arif, a solicitor in London, was the defending lawyer for the first British man acquitted of ‘recklessly’ transmitting HIV to his gay lover.
Donald Findlay QC defended a Scottish man accused of knowingly infecting his girlfriend with HIV.
Mr Arif said: “Someone who is HIV positive must inform their partner of their status before having intercourse. There must be expressed consent.
“Most of the cases that I have dealt with have involved homosexual men and there is always a question of implied informed consent and whether that would amount to a defence.
“For example, the gay scene is known as promiscuous and there is a risk of transmission of HIV from one party to another. The fact that the parties do not discuss this before intercourse and do not use protection, does that mean that they consent to the risk?
“That is the trouble that we have had in these cases. But the law is very clear that implied informed consent is not a defence. You have to have expressed consent, be it in writing or verbally.
“The charges are always for ‘reckless’ transmission – the person thinks of the risk but none the less carries on.
“The only defence is if you obtain expressed consent.
“And even that may not be enough in the court’s view because they might judge that a person could never, in their right mind, have consented to such a risk.
“From a defence perspective, we go hard and fast at the causation side of things. It is always the scientific evidence that will make or break the case.
“There have been discussions whether there should be a separate offence for passing HIV on. The current law is probably sufficient, classing it as a GBH.
“But whether you should prosecute is questionable. My client would have contracted HIV from someone and he did not consent to it. But he hasn’t complained. You could go back and keep prosecuting. It’s an endless cycle.
“I don’t know whether because of this acquittal case the prosecution will stop and think whether they can prove causation.”
Donald Findlay said: “In Scotland, the charge is culpable and reckless conduct.
“If you know that you have HIV, you know that it can be transmitted through sexual intercourse and that it is obviously damaging to the health of the person who catches it and you have unprotected sex, that alone is reckless, which would make it culpable.
“Whether the partner in the sexual act knows and consents is a moot point because you cannot, in Scottish law, consent to an assault.
“Intent can be inferred from the nature of the conduct.
“The law would assume, unless you could somehow prove to the contrary, that you knew it was dangerous to have sexual intercourse because you might transmit the infection.
“If you were HIV positive and told your partner and used a condom but it split, that I do not think would amount to a crime.
“If you did not tell your partner but used a condom – that is a grey area.
“If you have not disclosed it you have a potential problem because you are depriving the other person of assessing the risks that they are taking.
“If there are two people and they know that one of them has HIV and they go out and get blind stinking drunk and end up in bed and the infection is passed, whether anybody would be prosecuted in that situation is somewhat dubious.
“The risk they could be prosecuted is certainly there.
“If you are HIV positive, have told your partner and they consent to unprotected sex, I still think you have committed a crime under Scottish law. I could not rule out the possibility of a prosecution.
“In Scotland, if you have people into sadomasochism, even if though the person consents to being hit, it would still be an assault by the person doing it.”